Opinion
05 Civ. 3970 (KMW) (KNF).
December 13, 2007
Dynegy Midstream Services, L.P. Added: 06/12/2006, (Third Party Defendant), represented by John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX.
Interested Underwriters As Subrogees for Rio Energy International Inc, Added: 04/06/2006 (Plaintiff), represented by Charles Clayton Conrad, Brown Sims PC, Houston, TX, G Byron Sims, Brown Sims PC, Houston, TX, Kristopher M Stockberger, Preis Roy, Houston, TX.
Interested Underwriters as Subrogees of Rio Energy International Inc, Added: 01/12/2006 (Intervenor), represented by Charles Clayton Conrad, Brown Sims PC, Houston, TX, John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX, Jeromy D Hughes, Brown Sims PC, Houston, TX, G Byron Sims, Brown Sims PC, Houston, TX, Kristopher M Stockberger, Preis Roy, Houston, TX.
K-Sea Operating Partnership L.P., Staten Island, NY, Added: 03/08/2006 (ThirdParty Plaintiff), represented by John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Operating Partnership L.P., Staten Island, NY, Added: 03/08/2006 (Counter Claimant), represented by Thomas Canevari, Freehill Hogan And Mahar LLP, New York, NY, Wayne D Meehan, Freehill Hogan and Maher, New York, NY, John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Operating Partnership L.P., Staten Island, NY, Added: 03/08/2006 (Defendant), represented by Thomas Canevari, Freehill Hogan And Mahar LLP, New York, NY, Wayne D Meehan, Freehill Hogan and Maher, New York, NY, John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Transportation Corp, Added: 04/06/2006 (Defendant), represented by John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Transportation Partners, LP Added: 01/12/2006 (Third Party Defendant), represented by John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Transportation Partners, LP Added: 11/21/2005 (Counter Claimant), represented by John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Transportation Partners, LP Added: 11/21/2005 (Counter Claimant), represented by Thomas Canevari, Freehill Hogan And Mahar LLP, New York, NY, Wayne D Meehan, Freehill Hogan and Maher, New York, NY, John L Schouest, Phelps Dunbar LLP, Houston, TX.
K-Sea Transportation Partners, LP Added: 11/21/2005 (Defendant), represented by Thomas Canevari, Freehill Hogan And Mahar LLP, New York, NY, Wayne D Meehan, Freehill Hogan and Maher, New York, NY, John L Schouest, Phelps Dunbar LLP, Houston, TX.
M/T Rebel Added: 04/06/2006 (Defendant).
Targa Midstream Services Limited Partnership Added: 01/12/2006 (Third Party Defendant), represented by Gregory F Burch, Locke Liddell et al, Houston, TX, John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX.
Targa Midstream Services Limited Partnership, Added: 11/21/2005 (Counter Defendant), represented by Gregory F Burch, Locke Liddell et al, Houston, TX, John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX, Rachel Hope Stinson, Locke Liddell Sapp, Houston, TX.
Targa Midstream Services Limited Partnership, Added: 11/21/2005 (Counter Defendant), represented by Gregory F Burch, Locke Liddell et al, Houston, TX, John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX, Rachel Hope Stinson, Locke Liddell Sapp, Houston, TX.
Targa Midstream Services Limited Partnership Added: 04/06/2006 (Defendant), represented by John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX.
Targa Midstream Services Limited Partnership Added: 11/21/2005 (Plaintiff), represented by Gregory F Burch, Locke Liddell et al, Houston, TX, John Michael Holland, Locke Lord Bissell Liddell LLP, Houston, TX, Rachel Hope Stinson, Locke Liddell Sapp, Houston, TX.
Unnamed Master of M/T Rebel Added: 04/06/2006 (Defendant).
Unnamed Wheelman of M/T Rebel Added: 04/06/2006 (Defendant).
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Dwan Torres ("Torres"), acting pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by New York State is unlawful because: (1) the prosecution's medical expert witness usurped the jury's function by testifying that the victim did not consent to sexual intercourse with the petitioner; (2) the prosecutor misused the petitioner's false exculpatory statements; (3) the trial court failed to instruct the jury that the petitioner's statements to law enforcement personnel could be considered only as evidence of the petitioner's consciousness of guilt; (4) fetal evidence and testimony about the victim's pregnancy and abortion had an inflammatory and prejudicial effect on the jury; (5) his trial counsel rendered ineffective assistance to him by failing to object to the introduction into the trial record of prejudicial, unreliable and inadmissable evidence; and (6) his sentence is excessive. The respondent opposes the petition.
BACKGROUND
On December 16, 1997, thirteen-year-old A. D. arrived at Brooklyn, New York, to visit her biological mother, whom she had not seen since her removal from her mother's custody, eleven years earlier. A few days after she arrived at her mother's home, A. D. met her great-uncle, Torres; he was 36 years old. On January 1, 1998, Torres invited A. D. to view a movie and to shop with him. A. D. did not tell her mother of her plan to meet with Torres.A. D. and Torres met and took the subway from Brooklyn to Harlem. While passing by a movie theater, Torres told A. D. he had left his wallet at the apartment of "Jay," a friend of A. D.'s mother, whom A. D. had met previously at her mother's home. A. D. and Torres went to Jay's apartment. Upon their arrival, A. D. played with Jay's toddler son briefly, while Torres was in a bedroom. Torres summoned A.D. to the bedroom. When she entered, Torres closed the door. At that time, A. D. noticed he was undressing. She began to move backwards because Torres was blocking the bedroom door, and she fell onto a mattress, located on the bedroom floor. Torres approached, and while on her back, A. D. attempted to push Torres away from her. However, he managed to position himself on top of her. A. D. said "no" to Torres multiple times, as he attempted to take her clothes off. Once Torres succeeded in removing her clothes, he penetrated A. D. Thereafter, Torres escorted A. D. back to Brooklyn via subway.
At approximately 5:00 p.m. on the same day, after she was unable to locate A. D., A. D.'s mother reported A. D. missing at the local police precinct. Both the police and A. D.'s mother searched for her. At about 7:00 p.m., A. D.'s mother returned to her home, where she found A. D. A. D. reported that she had been with Torres and that he "touched her." A. D.'s mother observed blood on A. D.'s clothes and took her to a hospital for an examination. The examination revealed that A. D.'s hymen was perforated, the area around it was inflamed and a bloody, mucous vaginal discharge was present. Law enforcement personnel were advised of the situation.
Detective Edward Tacchi ("Tacchi") located Torres. He asked Torres to accompany him to a police precinct. Once at the precinct, Tacchi took Torres to an interview room where he advised him of his Miranda rights. Torres waived his right to counsel. He admitted having sexual intercourse with A. D. and agreed to have his statements recorded on videotape, in the presence of an assistant district attorney.
Pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630 (1966), a person in police custody must be warned, prior to questioning, that: (i) he has the right to remain silent; (ii) anything he says can be used against him in a court of law; (iii) he has the right to the presence of an attorney; and (iv) if he cannot afford an attorney, one will be appointed for him prior to questioning.
On February 11, 1998, A. D. underwent an abortion procedure. A subsequent deoxyribonucleic acid ("DNA") test of A. D.'s aborted fetus confirmed Torres was A. D.'s impregnator.
Torres was indicted by a New York County grand jury for: (1) first-degree rape; (2) second-degree rape; (3) first-degree sexual abuse; (4) second-degree sexual abuse; and (5) endangering the welfare of a child. On May 12, 1998, the parties appeared in the trial court and discussed a possible plea bargain. During that court appearance, Torres rejected the prosecution's offer to recommend a sentence of five to ten years imprisonment in return for a plea of guilty, after the prosecution's previous offer to recommend a sentence of three to six years imprisonment had been withdrawn, as a result of the DNA test findings. The following day, the trial court conducted aHuntley hearing and denied a motion Torres had made to suppress the statements he gave to law enforcement officials when he was in the police precinct. Thereafter, Torres proceeded to trial before a jury.
A hearing conducted pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), is used to determine the voluntariness of inculpatory statements given by a criminal defendant to law enforcement personnel while in custody.
At the trial, Dr. Leslie Johnson ("Johnson"), an expert in forensic biology and DNA typing, testified for the prosecution. Johnson explained what DNA is and how DNA evidence is tested. She described the chain of custody of the DNA evidence she received for testing in the instant case, consisting of: (i) a paper spotted with Torres' blood; (ii) fetal specimens from A. D.; and (iii) A. D.'s buccal swab. Johnson testified that DNA test results confirmed Torres' paternity of the fetal specimen that was received in evidence at the trial. The prosecution also presented testimony from Lynn Jennings ("Jennings"), a physician's assistant, who examined A. D. at the hospital and observed redness about and a mucous discharge from A. D.'s vagina.
Tacchi also testified at the trial. He read to the jury three written statements Torres made at the police precinct. A videotape containing Torres' statements was also received in evidence. Tacchi explained the method he used to elicit information from Torres. He described how, after Torres signed his first written statement, which did not contain any information about the sexual contact between Torres and A. D., he thanked Torres for being cooperative and left the room. A few minutes later, when he returned to the room, Tacchi told Torres that discrepancies existed between his statement and the evidence he anticipated would be obtained indicating that sexual contact was forced upon the 13-year old child. Thereafter, Torres made and signed a second statement, explaining that he was drunk and, alternately, in and out of consciousness when A. D. forced herself onto him. Tacchi thanked Torres again for cooperating with the investigation and left the room. Tacchi returned to the room later and explained to Torres that it was necessary for Torres to disclose fully everything that happened. As a result, Torres made and signed a third statement, in which he admitted being awake at all times and stated that A. D. forced herself onto him. Tacchi explained to the jurors, during redirect examination, that his goal in interviewing Torres was not to have him admit using force on A. D., because he did not "think that [Torres] was capable of admitting to the force."
Dr. Margaret McHugh ("McHugh"), a pediatrician with a specialty in child sexual abuse, testified for the prosecution. McHugh found, based on the records of A. D.'s January 1, 1998 hospital examination, which noted a bloody, mucous vaginal discharge and redness around both the hymenal tissue and the area near the urethra were observed, and the history A. D. presented, that a sexual encounter consistent with force occurred several hours prior to A. D.'s examination. McHugh opined that three hours of documented bleeding and mucous irritation would indicate that A. D.'s experience was very uncomfortable and painful and that, absent evidence of self-mutilation or a prior history of self-manipulation, the condition of A. D.'s vagina would be consistent with a forcible penetration.
On cross-examination, McHugh was asked whether A. D.'s hymen could have been broken during consensual sex. McHugh opined that A. D.'s observed hymenal tears resulted from applying force to a closed vaginal area or to the hymenal area, post-pubital, where no relaxation is present. On redirect examination, McHugh stated that, in light of the bloody, mucous vaginal discharge, the history A. D. presented and the three hours of bleeding she suffered, the sexual episode A. D. experienced occurred several hours prior to her hospital examination and is "not consistent with consensual intercourse; it's consistent with force in and of itself."
The jury convicted Torres for: (a) first-degree rape; (b) second-degree rape; and (c) endangering the welfare of a child. He was sentenced to concurrent terms of 12 ½ to 25 years imprisonment for the first-degree rape conviction, two and one-third to seven years imprisonment for the second-degree rape conviction and one year in prison for endangering the welfare of a child.
"A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: 1. By forcible compulsion." New York Penal Law (" PL") § 130.35(1) (1998).
"A person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than fourteen years old." PL § 130.30 (1998).
"A person is guilty of endangering the welfare of a child when: 1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." PL § 260.10(1) (1998).
Torres filed a notice of appeal with the New York State Supreme Court, Appellate Division, First Department. He also filed a motion, in the trial court, to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on the ground of ineffective assistance of trial counsel. Specifically, Torres maintained that his trial counsel's failure to object to the admission into evidence of the victim's surgically removed fetus and the testimony about the victim's pregnancy, after Torres conceded he had sex with the victim but argued it was consensual, violated his right to have effective assistance from counsel.
The trial court denied Torres' CPL § 440.10 motion because: (i) the trial record was sufficient to permit Torres to raise his ineffective assistance claim on direct appeal; (ii) Torres failed to comply with the requirements of CPL § 440.30, namely, to submit affidavits or any evidence in support of his claim; and (iii) trial counsel's failure to object to the introduction into evidence of the fetal specimen and the testimony about the victim's pregnancy was "a viable stratagem," since the fetal evidence and the testimony about A. D.'s abortion did not change the defense strategy, that Torres and the victim had consensual sex. Moreover, the trial court noted, the receipt of the fetal specimen in evidence was not a reversible error because the fetal evidence: (a) was wrapped so as not be visible by the jury; (b) was relevant to an issue at the trial; and (c) was properly received in evidence, to establish the chain of custody relating to the admissibility of the DNA evidence and not to inflame the passions of the jury.
The Appellate Division granted Torres' motion for leave to appeal to that court from the denial of his CPL § 440.10 motion and consolidated it with Torres' direct appeal from the judgment of conviction. Torres claimed, in the Appellate Division, that: (1) the prosecution's medical expert witness usurped the jury's function and deprived him of his due process right to a fair trial by testifying that the victim did not consent to having sexual intercourse with him; (2) he was deprived of his due process right to a fair trial by the prosecutor's excessive and flagrant misuse of his false exculpatory statements and by the trial court's failure to instruct the jury that those statements could be considered only as evidence of consciousness of guilt and that such evidence had little incriminatory value; (3) while the fetal evidence and the testimony about the victim's pregnancy corroborated his open-court concession that the sexual encounter occurred, their admission into evidence had an improper, inflammatory and prejudicial effect resulting in a violation of his due process rights; (4) his trial counsel rendered ineffective assistance to him when he failed to object to the introduction of prejudicial, unreliable and inadmissable evidence; and (5) his sentence is excessive.
The Appellate Division affirmed the judgment of the conviction finding that: (a) the prosecution's medical expert witness did not usurp the jury's function because Torres' cross-examination of that witness opened the door to redirect examination about whether the medical findings were consistent with consensual sex; (b) the record established that Torres' trial counsel rendered effective assistance to him and that counsel's failure to make various objections did not deprive Torres of a fair trial or prejudice his defense; (c) no basis existed upon which to reduce his sentence; and (d) Torres' remaining claims were not preserved for appellate review, but even if they had been, they would be rejected. See People v. Torres, 3 A.D.3d 433, 434, 770 N.Y.S.2d 622 (App.Div. 1st Dep't 2004). Thereafter, Torres sought leave to appeal to the New York Court of Appeals. Torres' request for leave to appeal to that court was denied. See People v. Torres, 2 N.Y.3d 765, 778 N.Y.S.2d 784 (2004). This petition followed.
DISCUSSION
An application for a writ of habeas corpus made by a prisoner in custody pursuant to a judgment entered in a state court may be granted only upon a finding that the prisoner is in custody in violation of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a).
Expert Witness' Usurpation of the Jury's Function
Torres contends McHugh's testimony, that the medical findings were "not consistent with consensual intercourse" and were "consistent with force in and of itself," amounted to an opinion that the intercourse was not consensual and usurped the jury's function to determine whether A. D. consented to having sexual intercourse with him. According to Torres, McHugh was not in a better position than an average juror to correlate medical findings to the issue of consent to sexual activity because whether A. D. consented to having sexual intercourse with him was an issue of credibility "within the sole province of the jury to decide." Furthermore, according to Torres, McHugh's "erroneous testimony was not harmless."
The respondent contends, by asking McHugh how she could tell the difference between consensual and non-consensual sexual intercourse, defense counsel opened the door to redirect examination about whether A. D.'s bloody, mucous vaginal discharge was consistent with anything other than forcible penetration. Additionally, according to the respondent, McHugh's testimony did not usurp the jury's function because her opinion was not offered to establish the existence of a crime, it was offered to explain the medical significance of A. D.'s bloody, mucous vaginal discharge, which was information outside the ken of an average juror.
In conducting habeas corpus review, federal district courts do not reexamine "state-court determinations on state-law questions," but determine "whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68,112 S. Ct. 475, 480 (1991). Under New York law, the admissibility and scope of expert testimony concerning "the ultimate questions and those of lesser significance" are matters left to the sound discretion of the trial court. People v. Cronin, 60 N.Y.2d 430, 432-33, 470 N.Y.S.2d 110, 111 (1983). An expert witness' testimony necessarily "enters upon the jury's province, since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt." Id., at 432, 470 N.Y.S.2d at 111. Opinion witness testimony "is admissible where the conclusions to be drawn from the facts 'depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.'" Id. (citations omitted). An expert witness may be cross-examined and impeached and a different opinion may be adduced through the adversary's expert witness. See id. A jury is the only arbiter of whether any witness' testimony is truthful. See People v. Ciaccio, 47 N.Y.2d 431, 439, 418 N.Y.S.2d 371, 375 (1979). Where the sole reason for examining an expert witness "is to bolster the testimony of another witness by explaining that his version of the events is more believable than the defendant's," such expert witness testimony is inadmissible. Id.
On direct examination, the prosecutor asked McHugh whether "the bloody mucous discharge, that was coming from the victim's vagina, would be consistent in [her] medical opinion with force." McHugh answered: "With the history presented that this episode occurred several hours before it would be consistent with force." On cross-examination, the petitioner's defense counsel asked McHugh how she could determine the difference between consensual and non-consensual sex with respect to the tearing of the hymen. She answered that the "finding of tears through the mucosa itself through the tissue of the hymen to the base of the insertion is consistent with forcible penetration." On redirect examination, the prosecutor asked McHugh whether A.D.'s bloody, mucous vaginal discharge was "consistent with anything other than a painful forceful penetration." McHugh answered that, in conjunction with three hours of bleeding, it was "consistent with force in and of itself."
The prosecutor inquired of McHugh, and she opined about the correlation between the bloody mucous discharge from the victim's vagina and the application of force. In probing McHugh about that correlation, the petitioner's defense counsel questioned her about the difference between the tearing of the hymen during consensual and non-consensual sexual intercourse. The difference between the tearing observed at the hymen occasioned by consensual and non-consensual penetration cannot be said to be within the ken of a typical juror. The average juror is not familiar with the configuration of the hymen and the interplay of various factors that may cause hymenal tearing or excessive bleeding in that region of the body. Having probed the witness about the correlation between A. D.'s bloody, mucous vaginal discharge and the application of force, through questions about the differences in a hymen that would be observed following consensual and non-consensual sexual intercourse, the petitioner's trial counsel made it permissible for the prosecutor to re-examine the witness on matters touched upon during the cross-examination, respecting the correlation between the bloody, mucous vaginal discharge and the application of force. It was also permissible for the prosecutor to follow defense counsel's questions of McHugh about the correlation between bleeding and sexual penetration with questions about the correlation between three hours of bleeding and consensual penetration.
McHugh did not opine on whether, in the instant case, the sexual intercourse was consensual. McHugh's opinion informed the jurors: (a) about medical findings in circumstances where forcible penetration has occurred in a post-pubital child; and (b) that the excessive bleeding and a tearing of the hymen in a post-pubital child, absent self-mutilation and self-manipulation, could be caused only by forcible penetration; thus making it inconsistent with consensual penetration. Contrary to Torres' contention, McHugh, an expert in child sexual abuse, was, unlike an average juror, able to correlate the medical findings to the issue of whether forcible penetration caused A. D.'s hymenal tearing, excessive bleeding and bloody, mucous vaginal discharge, because performing such an exercise is not within the knowledge of an average juror, although an average juror may know that blood may be associated with a torn hymen.
The jury was instructed that it: (i) was not required to accept McHugh's testimony "merely because she was an expert;" (ii) may reject an expert's opinion if, after careful consideration of all the evidence in the case, it disagrees with the expert's opinion; and (iii) may consider the qualification of the expert, in determining what weight to give to her testimony. Moreover, McHugh's testimony was not used to bolster A. D.'s testimony, because A. D. did not testify about the bloody, mucous vaginal discharge, irritation and the redness of her vaginal area, or the extent of the bleeding she experienced. The only person who testified about the redness and mucous discharge from A. D.'s vaginal area was Jennings. McHugh's testimony was not presented to bolster Jennings' testimony. It was presented to the jury to explain the significance of the medical findings Jennings made and recorded.
Although McHugh's opinion testimony touched upon the issue of consent, the ultimate determination on which is within the exclusive province of the jury, that, by itself, does not make her testimony impermissible. McHugh's opinion testimony was admissible because the conclusions to be drawn from the medical findings depended upon knowledge about child sexual abuse, a matter that is not within the range of knowledge of an average juror. To the extent that McHugh encroached upon the jury's province, if at all, when she testified that the medical findings were consistent with forcible penetration, such an encroachment was permissible in the circumstance of the instant case, and the jury was free to accept or reject that testimony, in whole or in part. The Court finds that no violation of Due Process occurred when the trial court admitted McHugh's opinion testimony into the record because the testimony did not usurp the jury's role: to determine whether the sexual intercourse at issue was consensual. Therefore, Torres is not entitled to habeas corpus relief on this claim.
Prosecutor's Use of Torres' Statements in Summation
Torres contends the prosecutor infringed upon his constitutional right to remain silent when, in summation, she referred to him as "a manipulator" and "misused [his statements to Tacchi] to undermine [his] right to remain silent by contrasting [his] statements — [his] 'story' — with the complainant's 'supported' testimony." Additionally, Torres asserts, Tacchi's opinion, that his false exculpatory statements were "typical of rapists," was erroneously received in evidence and referred to by the prosecutor when she stated, in summation, "you never look for the guy to tell you he did it forcibly because he's not going to do that."
The respondent argues Torres' statements "were not 'false exculpatory statements,' as [he] contends, but complete and detailed admissions to statutory rape" and, as such, are party-admissions admissible against the declarant under the Federal Rules of Evidence. According to the respondent: (i) the prosecutor did not make overt reference to the fact that Torres did not testify; (ii) the prosecutor's statements, in summation, that the medical evidence corroborated A. D.'s account of forcible rape were a proper response to Torres' summation, consisting of an attack on A. D.'s credibility, and they did not implicate his right to remain silent; and (iii) the prosecutor's remark, that Torres was "a manipulator," was a proper response to his attempt, in summation, to convince the jury that A. D. had a "crush" on her uncle and "was a frequent prevaricator who claimed that she was raped because she did not want to get into trouble." Moreover, the respondent contends, Tacchi did not opine that Torres' statements were "typical of rapists" but merely stated that he did not believe Torres was capable of admitting to force, without elaborating on why he believed so.
The standard of review for a claim of prosecutorial misconduct, on a writ of habeas corpus, is whether the prosecutor's conduct was so egregious as to deny the accused his right to due process.See Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). To justify a reversal for the use of improper comments during summation, a prosecutor's conduct must be "so egregious that, when viewed in the context of the entire trial, it substantially prejudiced [the defendant]." United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004). In determining whether an aggrieved party suffered substantial prejudice where a prosecutor's summation is challenged, courts consider: (a) the severity of misconduct; (b) measures adopted to cure the misconduct; and (c) the likelihood of conviction absent the improper statements. See id.
In summation, defense counsel depicted A. D. as "a person who lies when she wants to achieve her own interests" and attempted to convince the jury that "the defendant's action in this incident [was] not consistent with someone who forcibly raped a woman." The prosecutor invited the jurors to conclude, from the time, interest and attention Torres gave to A. D., that he was "a manipulator." After the prosecutor recounted Tacchi's testimony concerning the statements Torres made to him, she stated: "The victim told you exactly what happened in this room. After watching the defendant's [videotape] and listening to his statement, do you have any idea what his version is of this? Because I don't. She was very clear about what happened on that mattress." At the end of her summation, the prosecutor told the jury that McHugh's opinion testimony was introduced to corroborate A. D.'s testimony and she stated: "[A. D.]'s word is corroborated by all the credible evidence in the case taken together. She is supported by all the other credible evidence in this case and the defendant is supported by none of it, none of it. There is no evidence in the case that comports with this defendant's story; none."
The trial court provided a detailed instruction to the jury explaining that counsel's argument(s) is not evidence and that "neither counsel has the power to determine for you what the facts are." The trial court also instructed the jury that: (i) the fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn; and (ii) the defendant is under no obligation to prove that he is not guilty or to produce any evidence on his own behalf. Additionally, it provided the jurors with a general instruction about the credibility of witnesses, including law enforcement witnesses.
The prosecutor's characterization of Torres as a manipulator was responsive to the defendant's attempts, during summation, to convince the jury that A. D. would not testify thruthfully about being raped because she had a crush on Torres and she was motivated not to be truthful in order to avoid trouble with her mother. In summation, the prosecutor depicted A. D. as a vulnerable teenager, coping with serious problems. She stated Torres was "a manipulator" because, after he gave A. D. the attention she needed and earned her trust, he took advantage of her.
The prosecutor argued permissibly that A. D.'s testimony was corroborated by other evidence in the trial record, and focused the jury's attention on that evidence. However, while the prosecutor did not make overt references to the fact that Torres did not testify, she impliedly referred to it when she stated: "The victim told you exactly what happened in this room. After watching the defendant's [videotape] and listening to his statement, do you have any idea what his version is of this? Because I don't. She was very clear about what happened on that mattress."
By suggesting to the jurors that they compare A. D.'s testimony at trial with Torres' pretrial statements and asking them whether they knew "what his version is of this," the prosecutor made an implied reference to the fact that Torres failed to challenge A. D.'s trial testimony by presenting "his version" of the event to the jurors. The prosecutor's remark concerning the lack of certainty about Torres' version of the event was not proper because it impliedly referred to Torres' failure to testify, albeit tenuously, thus implicating his constitutional right to remain silent. The prosecutor made no other remarks in summation that overtly or impliedly referred to Torres' failure to testify and the record evidence does not demonstrate a pattern of improper remarks during the prosecutor's summation.
The record shows that, during cross-examination, defense counsel asked Tacchi whether, in questioning Torres, he was trying to elicit from him some information with respect to his use of force against A. D. Tacchi answered that was not what he was trying to do and that his objective was to elicit as much detail as possible about the incident. The prosecutor's question, during redirect examination, whether it was Tacchi's objective to have Torres admit to using force, was responsive to defense counsel's questioning on the same subject. Tacchi did not opine that Torres' statements were "typical of rapists." Tacchi explained to the jury the methodology he used when questioning Torres and that his objective was to elicit as much detail as possible with respect to the incident of sexual intercourse. Tacchi did not elaborate on why he believed Torres was not capable of admitting to using force but expounded on his methodology: (i) following the suspect's lead, during questioning; and (ii) asking questions related to the statements made previously by the suspect.
Based on the trial record, which demonstrates that: (i) Tacchi did not opine on the conduct "typical of rapists" and that he never questions a rape suspect respecting the use of force, because that suspect would never admit to the use of force; and (ii) the trial court instructed the jury on the credibility of witnesses, including law enforcement witnesses, and the use of counsel's arguments, it cannot be said that Tacchi's statements or the prosecutor's reference to them had any significant impact on the jury's deliberation or that any prejudice resulted from them.
In the context of the entire trial, the single remark of the prosecutor, discussed above, was not sufficiently severe, by itself, to affect the fundamental fairness of Torres' trial. Inasmuch as the error was not egregious, the trial court acted reasonably in not providing a special curative instruction concerning it. The trial court's general instructions respecting: (i) Torres' right not to testify; (ii) counsel's argument(s) not being trial evidence; and (iii) the credibility of witnesses, were adequate, under the circumstances, to cure any potential negative influence the error might have had on the jury. Furthermore, it is unlikely that a single, improper remark by the prosecutor affected the jury's deliberation in any significant way. Since Torres' pretrial statements were received in evidence, and A. D.'s testimony was corroborated by other evidence presented at the trial, the jury could have convicted Torres absent the prosecutor's single remark concerning the lack of certainty about "his version" of the event. Therefore, habeas corpus relief is not warranted on this claim.
Trial Court's Failure to Instruct on False Exculpatory Statements
Torres contends, the trial court violated his due process right to a fair trial when it failed to instruct the jury, sua sponte, that his false exculpatory statements were admissible solely as evidence of his consciousness of guilt. The respondent contends, the prosecutor never sought to have Torres' statements admitted into evidence on any basis other than as an admission to statutory rape, thus it would not have been appropriate for the trial court to instruct the jury, sua sponte, that Torres' pretrial statements were false exculpatory statements.
A habeas corpus petitioner alleging an error in a jury instruction must establish not only that the instruction is erroneous but that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." See Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400 (1973). The petitioner's burden is "especially heavy" where the alleged error is the failure to instruct the jury. See Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737 (1977). "[A] finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights." Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001).
Under New York law, "[i]t is well established that before a jury may be charged that a defendant's assertion of a false explanation may imply a 'consciousness of guilt,' the People must seek to prove the falsity of the statement by evidence independent of that offered directly to prove the defendant's guilt." People v. Abdul-Malik, 61 A.D.2d 657, 661, 403 N.Y.S.2d 253, 255 (App.Div. 1st Dep't 1978). Independent evidence of the falsity of the defendant's statements is required because its absence would suggest that the jury's disbelief of the defendant's statements could be transposed into corroboration of the prosecution's case, thus, impermissibly shifting the burden of proof on the defendant. See id. at 662, 403 N.Y.S.2d at 256. "Hence the rule permits only that part of a defense which by independent proof is shown to be a fabrication to be considered, for the inference of consciousness of guilt." Id. at 662-63, 403 N.Y.S.2d at 256.
Torres does not identify any specific statements for which he believes a jury instruction on consciousness of guilt had to be provided by the trial court. It would appear, according to Torres, that all his statements, given while in police custody, would qualify as false exculpatory statements. However, Torres does not point to any independent evidence by which the prosecution sought to demonstrate the falsity of his exculpatory statements with respect to the forcible rape charge.
The record supports the respondent's contention that Torres' statements were not introduced for their falsity but were introduced because they were admissions by him of statutory rape. The prosecution did not introduce any evidence, independent of the direct evidence proving guilt, to demonstrate that Torres' exculpatory statements about the forcible rape charge were false. Therefore, absent such independent evidence, the trial court could not, sua sponte or otherwise, instruct the jury that it could infer consciousness of guilt from the false explanations Torres provided while in police custody. Instructing the jury under that circumstance would violate Torres' due process right because it would shift impermissibly the burden of proof to him. The Court finds that Torres was not erroneously deprived of a jury instruction to which he was entitled under state law. Accordingly, since the petitioner failed to establish a violation of his federal due process right, habeas corpus relief on this claim is not warranted.
Prejudicial Effect of Fetal and Pregnancy-Related Evidence
Torres asserts evidence about A. D.'s pregnancy and abortion, especially evidence of the fetal specimen, was "extremely inflammatory," prejudicial and "unnecessary corroboration of an established fact offered 'only to arouse the emotions of the jury and to prejudice [him].'" According to Torres, "[t]he erroneously admitted aborted fetal remains and evidence of [A. D.]'s pregnancy was not harmless." The respondent contends the use of the fetal specimen was proper, under New York law, because it was necessary to prove a chain-of-custody and the prosecution was "entitled to introduce the strongest evidence of sexual intercourse — the DNA-tested aborted fetus."
Generally, "the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Old Chief v. United States, 519 U.S. 172, 186-87, 117 S. Ct. 644, 653 (1997). The fact that Torres conceded having sexual intercourse with A. D. could not deprive the prosecution of its entitlement to prove its case by evidence of its choice that would "not just prove a fact but establish human significance, and so implicate the law's moral underpinnings and a juror's obligation to sit in judgment." Id. at 187-88, 117 S. Ct. 654. Contrary to Torres' contentions, his concession respecting having sexual intercourse with A. D. does not establish, by itself, beyond a reasonable doubt, that sexual intercourse occurred. The prosecutor was free to use the evidence of her choice, namely the resulting pregnancy and Torres' DNA contained in the fetus aborted by A. D., to establish that sexual intercourse occurred.
Where fetal evidence is introduced to establish the chain of custody related to the admissibility of DNA evidence, such evidence is relevant and admissible at the trial court's discretion, despite its unpleasant nature. See People v. White, 211 A.D.2d 982, 986, 621 N.Y.S.2d 728, 733 (App.Div. 3d Dep't 1995), lv. denied 85 N.Y.2d 944, 627 N.Y.S.2d 1006 (1995). Evidence of A. D.'s pregnancy and abortion was also admissible because it was relevant to establishing the source of the DNA evidence, and the prosecutor was entitled to place that evidence before the jury, inter alia, "to tell a story of guiltiness" and "to convince the jur[y] that a guilty verdict would be morally reasonable." See Old Chief, 519 U.S. at 188, 117 S. Ct. at 654. Therefore, habeas corpus relief based on this claim is not warranted.
Ineffective Assistance of Counsel
Torres contends his trial counsel rendered ineffective assistance to him because he failed to: (a) object to McHugh's opinion testimony on the issue of consent, the ultimate issue in the case; (b) limit the prejudicial misuse of his false exculpatory statements; and (c) object to the prosecutor's commencing the case with "irrelevant evidence of [A. D.]'s pregnancy" and the aborted fetus. Torres asserts, in the brief he submitted to the Appellate Division, on which he relies in the instant petition, that his trial counsel, in a conversation with Torres' appellate counsel, "could not immediately recall his reason for not objecting" but subsequently "expressed surprise that he had not objected" and agreed that, in view of Torres' concession concerning sexual intercourse with A. D., the "introduction of the aborted fetus, at least, was unnecessary and overwhelmingly prejudicial." This, according to Torres, demonstrates that his trial counsel was not familiar with the law and did not have a reasonable strategy that would explain his failure to make the above-noted objections.
The respondent contends: (i) McHugh's testimony respecting evidence of force was admissible and any objection to it would have failed; (ii) the trial court would have denied counsel's request for a limited instruction regarding Torres' statements because he was not entitled to it; and (iii) the pregnancy and abortion evidence was admissible, and any objection to it would have failed. Moreover, the respondent maintains, because no reasonable probability existed that but for the alleged error, the outcome would have been different, counsel was not ineffective for failing to object.
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show: (1) that his counsel's performance fell below an "objective standard of reasonableness," measured according to "prevailing professional norms;" and (2) prejudice. Id. at 687-88, 694, 104 S. Ct. at 2064-65, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066.
As discussed above: (a) the trial court acted properly in admitting into the trial record opinion testimony concerning the application of force; (b) Torres' pretrial statements to Tacchi were not false exculpatory statements, and he was not entitled to a limiting jury instruction; and (c) the pregnancy and the fetal specimen were relevant evidence and no basis existed to object to the prosecutor's determination concerning the scope of the evidence to present to the jury in support of the state's case. Torres failed to established that his trial counsel: (i) was not familiar with the law governing the admission of evidence, as discussed above; or (ii) did not have and employ a reasonable trial strategy when he failed to make certain objections, because Torres did not present competent evidence, in the form of an affidavit from his trial counsel, or otherwise, that would support his contentions. Even if Torres submitted competent evidence demonstrating that his trial counsel: (1) was unable to recall why he failed to make certain objections at trial; (2) was surprised he did not object to the introduction of fetal evidence; or (3) opined, when he spoke with Torres' appellate counsel, that, in view of Torres' concession, that he engaged in sexual intercourse with A. D., introduction of the fetal evidence was unnecessary and overwhelmingly prejudicial, that evidence would not establish that the petitioner's trial counsel was not familiar with the applicable law or that he did not exercise reasonable professional judgment when he failed to make objections. Accordingly, because Torres failed to demonstrate that his trial counsel's performance was deficient, in that it fell below an objective standard of reasonableness, measured according to prevailing professional norms, habeas corpus relief based on this claim is not warranted.
Excessive Sentence
Torres claims that his sentence of 12 ½ to 25 years imprisonment was unwarranted in light of the fact that: (a) he had never been convicted for a crime before; and (b) he had been offered the opportunity to have the prosecutor recommend a sentence of three to six years imprisonment in return for his agreement to plead guilty to first-degree rape.
"No federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law."White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995); Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993). In the case at bar, Torres was sentenced for first-degree rape, second-degree rape and endangering the welfare of a child. The term of imprisonment for: (1) first-degree rape, a class B violent felony offense, must be at least six and not more than 25 years; (2) second-degree rape, a class D felony offense, must be at least one and not more than seven years; and (3) endangering the welfare of a child, a class A misdemeanor, shall not exceed one year. See PL §§ 70.02 and 70.15 (1998). Torres' sentence does not present a constitutional issue, because each term of imprisonment imposed on him falls within the range prescribed by state law for the applicable offense. Therefore, he is not entitled to a habeas corpus relief on this ground.
RECOMMENDATION
For the foregoing reasons, I recommend that the petition be dismissed.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).